BBTEF  EXAMINATION  AND  EXPOSITION 


OF  THE 


0f  Station,  Wisiif  anh  Scardj 


IN  TIME  OF  PEACE. 


EXAMINED  ON  LEGAL  PRINCIPLES  AND  AUTHORITIES 


BY 

RICHARD  S.  COXE,  LL.  D. 

COUNSELLOR  AT  LAW. 


WASHINGTON: 

HENRY  POL  KIN  HORN,  PRINTER. 

1858. 


Note. — This  article,  on  a subject  of  deep  interest,  was  commenced  with 
the  simple  design  of  presenting,  perhaps  through  a single  column  in  a news- 
paper, a view  of  the  purely  legal  principles  which  affect  one  of  the  most 
interesting  questions  which  now  subsist  between  the  United  States  and 
Great  Britain.  It  has  swelled,  unexpectedly,  into  its  present  dimensions — 
large  when  compared  with  the  original  design,  small  w.hen  estimated  by  the 
magnitude  and  importance  of  the  subject  discussed.  It  is  hoped  that  it  has 
been  treated  with  mildness  of  temper  and  courtesy  of  langua  g*.  and  that 
while  in  no  manner  disrespectful  to  Great  Britain,  it  will  confirm  Americans 
in  their  belief  that  our  country  has,  upon  this  interesting  subject,  advanced 
no  claim  or  pretension  not  perfectly  founded  in  and  well  sustained  by  the 
highest  authority,  and  which  we  never  can  or  will  surrender.  R.  S.  C. 


5XL% 

,er 


ON 

©ft*  ftigftt  0f  Jlctfnt ion,  fteit,  amt  ^eaeeh. 


The  present  aspect  of  affairs  between  the  United  States 
and  Great  Britain  is  calculated  to  awaken  on  both  sides  the 
most  anxious  solicitude,  and  certainly  demands  the  most  se- 
rious consideration.  The  exercise,  by  the  cruisers  of  her 
Britannic  Majesty,  of  a claim  of  right  to  detain  on  the  oceans 
American  vessels,  while  engaged  in  the  prosecution  of  a law- 
ful voyage,  and  sailing  under  the  flag  of  their  own  country, 
in  a time  of  profound  peace,  is  conceded  to  be  a flagrant  out- 
rage under  any  circumstances.  To  do  this  in  the  seas,  so 
close  to  our  own  coast  as  the  narrow  passages  between  the 
several  West  India  Islands  and  the  territory  of  the  United 
States,  has  at  least  the  appearance  of  superadding  indignity 
and  insult  to  wrong. 

It  is  not  surprising,  then,  that  the  repeated  recurrence  of 
these  insulting  outrages  should  have  kindled  a deep  feeling 
throughout  the  United  States,  or  that  some  of  our  citizens 
should,  under  the  strong  sensibility  to  a supposed  wrong,  be 
disposed  at  once  to  retort  upon  the  offenders  with  the  alac- 
rity and  vigor  which  every  hostile  aggression,  authorised  or 
affirmed  by  a foreign  power,  would  justly  receive.  Should 
Great  Britain  either  have  directed  these  proceedings,  or 
assume  the  responsibility  of  them  when  brought  to  her  no- 
tice by  our  Minister,  such  avowal  can  and  will  be  considered 
in  no  other  light  than  a public  declaration  of  war.  For 
years  we  have  denied  that  any  nation  possesses  the  right 


4 


claimed  and  exercised  by  the  cruisers  of  Great  Britain;  have 
refused  to  submit  to  even  a modified  exercise  of  it  on  the  coast 
of  Africa,  as  a means  of  repressing  the  slave-trade ; and  have 
given  her  distinctly  to  understand  that  any  attempt  to  exer- 
cise it  will  be  resisted  by  force  of  arms.  When,  therefore, 
under  such  circumstances,  after  such  previous  notification  of 
the  consequences  which  must  result,  any  government  directs 
or  sanctions  such  proceedings,  such  conduct  is  tantamount  to 
a declaration  of  war,  and  must  be  followed  by  general  hos- 
tilities. 

No  formal  declaration  of  war  is  required  under  the  well 
recognised  law  of  nations.  Every  hostile  act,  directed  or 
sanctioned  by  one  government  against  another,  is  an  act  of 
war,  and  places  the  two  nations  in  a hostile  attitude.  We, 
therefore,  await  the  response  from  England  with  anxiety, 
but  with  determination.  On  our  side,  a war,  growing  out  of 
these  proceedings,  would  be  purely  defensive.  The  aggres- 
sions have  been  wanton,  deliberate,  premeditated.  They 
have  been  made  with  ample  notice  of  what  our  national  dig- 
nity, honor,  and  interests  demand.  They  have  been  purely 
aggressive' — not  to  repel  any  injury  or  insult,  but  to  enforce 
against  us  a claim  which  we,  denying  its  foundation  in  right? 
have  avowed  our  determination  to  resist  by  arms. 

It  is  important  that  the  people  of  the  United  States  should 
distinctly  apprehend  the  true  merits  of  a controversy  which 
may  lead  to  such  results.  It  is  equally  unrighteous  to  enforce 
an  unjust  claim,  and  to  resist  or  negative  one  which  is  well 
founded.  If  the  claim  which  England  asserts  and  undertakes 
to  exercise  be  a lawful  one,  even  a defensive  war  on  our  side, 
to  prevent  such  exercise,  would  be  unjust.  If,  on  the  other 
hand,  her  claim  has  no  foundation  in  right,  her  aggressive 
acts,  in  support  or  execution  of  it,  are  as  palpably  wrong. 
If,  then,  it  is  clear  that  the  justice  of  a war  is,  in  no  degree, 
dependent  upon  the  question  whether  it  be  an  offensive  or  a 
defensive  one ; if  to  assert  and  maintain  a wrongful  claim, 
by  an  act  of  hostility,  be  highly  criminal,  to  repel  such  ag- 
gression cannot  but  be  righteous.  Independently  of  this 


5 


obvious  truth,  it  may  further  be  observed  that,  when  one  na- 
tion asserts  a right  which  another  denies,  the  ordinary  cour- 
tesy which  ought  always  to  subsist  between  equals  forbids 
the  idea  that  either  has  been  guilty  of  asserting  what  she 
knows  to  be  untenable,  but  requires  that  each  should  be  sup- 
posed honest  and  sincere  in  its  respective  opinion.  To  at- 
tempt by  force,  therefore,  to  compel  acquiescence  in  a con- 
troverted claim,  is  discourteous  and  insulting.  It  carries 
with  it,  by  distinct  implication,  the  idea  that  the  United 
States,  in  denying  the  right  claimed  by  England,  is  not 
merely  wrong  in  refusing  to  admit  the  exercise  ot  this  as- 
serted right,  but  that  such  denial  is  not  made  bona  fide,  and 
is  a sheer  pretence,  dishonorable  as  well  as  false  in  principle. 

The  distinct  and  positive  assertion  of  the  American  doc- 
trine, which  recent  events  have  elicited  from  so  many  quar- 
ters, demonstrates  at  least  the  honesty  with  which  these 
views  are  entertained.  Men  of  the  highest  and  purest  char- 
acter— men  of  all  parties,  representing  every  variety  of  in- 
terest and  all  sections  of  our  country — men  most  averse  to 
any  war  in  general,  but  more  especially  to  one  with  Great 
Britain,  are  unanimous  in  their  opinions  and  resolves.  Their 
opinions  are  expressed  in  terms,  and  fortified  by  arguments, 
which,  at  least,  indicate  the  sincerity  with  which  they  are 
entertained.  Should  an  impartial  world  arrive  at  the  con- 
clusion that  we  have  been  wTrong  in  these  views,  it  is  hardly 
to  be  conceived  that  any  one  would  impute  the  error  to  any 
other  origin  than  the  fallibility  of  human  judgment.  This 
conclusion  alone  would  sufficiently  demonstrate  the  foul  and 
insulting  character  of  the  wrong  perpetrated  by  England, 
should  she  sanction  or  direct  the  continuance  of  the  acts  of 
which  we  complain.  Should  she  be  able  to  prove  that  we 
are  wrong  in  the  construction  we  have  given  to  the  law,  until 
she  also  shows  that  we  were  knowingly,  wilfully  wrong,  she 
will  not  have  vindicated  her  conduct.  The  avowal  of  a de- 
termination to  resist  a claim  believed  to  be  unjust,  honestly, 
publicly  made,  furnishes  no  pretext  for  a resort  at  once  to 
force  to  establish  the  right  of  the  party  asserting  it. 


6 


Other  circumstances  exist  in  this  case.  Before  the  present 
occasion,  it  is  not  known  that  England  has  ever  at  any  one 
time  attempted,  by  act  or  deed,  to  enforce  this  assumed  right. 
Upon  this  subject  it  seems  that  an  error  has  existed  on  all 
sides.  It  is  alleged  that  this  right  of  visit  and  search  wTas 
one  of  the  prominent  causes  which  led  to  the  war  of  1812. 
This,  it  is  apprehended,  is  a great  mistake,  and  it  is  import- 
ant that  it  should  be  corrected.  Almost  without  intermission, 
from  the  time  of  the  formation  of  our  existing  political  insti- 
tutions, until  the  year  1812,  the  two  nations  had  never  occu- 
pied the  position  they  now  hold,  both  being  at  peace.  Du- 
ring the  entire  period,  from  the  commencement  of  the  wars 
originating  in  the  French  revolution,  in  1193,  until  1812,  we 
were  at  peace  and  England  at  war,  with  the  exception  of  the 
brief  interval  succeeding  the  treaty  of  Amiens.  As  a bellige- 
rent, the  right  of  England  to  visit  and  search  was  never  con- 
troverted by  the  United  States.  This  right  of  visitation  and 
search  is  one  conceded  by  all  the  writers  on  the  law  of  nations 
to  a belligerent ; and  although  for  a time  controverted  by 
some  of  the  northern  powers  on  the  continent  of  Europe,  at 
least  to  the  full  extent  claimed,  or  by  them  attempted  to  be 
modified  and  limited,  it  has  never  been  denied  by  any  jurist 
or  statesman  of  this  country. 

Our  difficulty  with  England  stood  on  a wholly  distinct 
ground.  While  we  recognized  the  belligerent  right  of  visita- 
tion and  search  of  merchant  vessels  upon  the  high  seas,  we 
insisted  that  this  being  a right  originating  in  and  deriving 
its  very  existence  from  the  law  of  nations,  it  was  necessarily 
limited  and  restricted  to  objects  over  which  that  law  had 
cognizance.  That  law,  so  far  as  relates  to  this  subject,  had 
reference  to  the  relative  rights  and  duties  of  belligerents  and 
neutrals.  It  had  nothing  to  do  with  the  merely  municipal 
laws  or  institutions  of  any  particular  nation.  It  authorised 
this  visitation  and  search  for  the  purpose  of  ascertaining 
whether  the  vessel  or  her  cargo  was  neutral  or  hostile; 
whether  there  were  on  board  contraband  goods,  or  persons 
who  were  enemies.  To  this  extent  we  always  acknowledged 


7 


the  right  of  a belligerent  to  examine,  and  the  corresponding 
obligation  of  the  neutral  to  submit  to  such  an  examination. 
Admitting  this  right,  we  consequently  acquiesced  in  the  legal 
conclusion  involved  in  it,  viz  : that  the  right  of  visitation  and 
search  being  a clear,  undeniable,  belligerent  right,  resistance 
to  it  was  a wrong  which  would  justify  its  enforcement  by 
capture  and  condemnation  as  prize  of  the  offending  party. 

These  principles,  not  admitting  of  doubt  or  dispute  on 
either  side,  have  never  been  the  subject  of  controversy. 
Our  difficulty  with  England,  anterior  to  the  war  of  1812,  was 
of  an  entirely  different  character,  involving  questions  to 
which  distant  allusion  has  been  made  in  the  foregoing  re- 
marks, but  which  are  now  to  be  more  particularly  noticed. 

As  has  been  said,  the  American  government  has  uniformly 
recognized  the  right  of  visitation  and  search  as  a belligerent 
right,  authorised  and  sanctioned  by  the  law  of  nations,  and, 
therefore,  to  find  in  that  law  the  rules  which  justify  its  exer- 
cise, the  subjects  upon  which  it  is  to  operate,  the  bounds  to 
which  it  rightfully  extends,  and  the  restrictions  by  which  it 
is  to  be  limited.  The  British  authorities,  on  the  other  hand, 
insisted  that  the  right  of  visitation  and  search  being,  as  all 
allowed,  a belligerent  right,  entitled  their  cruisers  to  board 
a merchant  vessel ; and  being  once  rightfully  on  board,  their 
officers  might  continue  the  search,  not  only  for  the  purpose 
of  ascertaining  whether  the  vessel  or  her  cargo  was  neutral, 
and  whether  she  had  on  board  anything,  or  had  done  any  act 
which  injured  the  rights  of  the  belligerent,  but  whether  she 
had  also  on  board  any  persons  who,  under  the  local  or  muni- 
cipal law  of  England,  owed  allegiance  to  her,  or  were  bound 
to  military  service  under  her.  This  claim  obviously  involved 
some  most  serious  questions.  The  one  was  whether  the  bel- 
ligerent right  of  visitation  and  search,  being  derived  exclu- 
sively from  the  law  of  nations,  was  not  limited  to  subjects 
and  objects  over  which  that  law  could  operate.  Second: 
Whether  this  right  could  legitimately  be  made  the  instrument, 
or  afford  the  facilities  for  the  enforcement  of  any  purely 
municipal  laws  of  the  country  of  the  belligerent.  Third: 


8 


Whether,  when  the  municipal  laws  of  the  belligerent  which 
claimed  the  right,  and  those  of  the  neutral  upon  whom  it  was 
to  be  exercised,  were  in  antagonism,  the  former  or  the  latter 
should  prevail  on  board  the  neutral  vessel.  Upon  these 
points  the  two  governments  differed.  Independently  of  the 
argument  on  the  part  ol  the  United  States  on  the  abstract 
question  of  right,  the  abuses  and  outrages,  the  insults  and 
manifold  personal  injuries  resulting  from  the  actual  exercise 
of  the  right  claimed  by  England,  were  insisted  upon  and 
strongly  urged.  It  was  shown  that,  under  color  of  this  bel- 
ligerent right  of  visit  and  search,  the  most  gross  outrages  had 
been  perpetrated,  for  which  no  or  a very  insufficient  com- 
pensation had  been  made  to  the  injured  party.  It  was  fur- 
ther insisted  on  that  this  right,  to  whatever  extent  it  might 
be  justified  or  allowed  by  the  law  of  nations,  conferred  no 
authority  to  enforce  the  peculiar  laws  of  the  belligerent 
power,  and  therefore  none,  under  any  circumstances,  to  seize 
even  an  acknowledged  subject  of  the  British  crown.  That 
no  individual  could  be  arrested  or  taken  on  board  an  Ameri- 
can vessel  for  a violation  of  English  law,  or  to  compel  obedi- 
ence to  English  institutions ; and  still  further,  that,  as  the 
United  States,  under  her  constitution  and  laws,  allowed  the 
subjects  or  citizens  of  any  and  every  foreign  government  to 
become  citizens  of  this  country,  and  as  such  to  be  entitled  to 
all  the  rights,  privileges,  and  protection  afforded  to  those 
who  were  native  born,  the  rights  of  such  were  as  perfect  on 
board  our  own  vessels  as  on  our  own  territories.  Thus  we 
denied  in  toto  the  right  of  impressment  on  board  an  Ameri- 
can ship. 

Such  were  the  matters  in  controversy  between  Great  Bri- 
tain and  the  United  States  preceding  the  war  of  1812.  If 
this  is  a correct  representation  of  the  case,  it  will  appear  that, 
during  the  whole  of  the  discussions  which  preceded  that  war, 
there  never  occurred  an  occasion  for  England  to  advance  the 
doctrine  of  the  right  of  search  or  of  visitation,  or  simply  visit, 
as  it  has  been  recently  designated  by  some  English  authori- 
ties, which  will  be  hereafter  alluded  to,  in  time  of  peace. 


9 


Up  to  the  year  1812,  therefore,  there  never  had  been  as- 
serted by  the  British  government  or  by  any  writer  of  any 
country,  that  such  a right  existed — certainly  it  was  never 
carried  into  practice.  From  the  termination  of  hostilities  in 
Europe  and  America  in  1814  and  1815,  it  has  never  been 
exercised  by  any  power,  unless  specially  provided  for  in  some 
treaty.  It  cannot,  therefore,  be  supposed  that  England  means, 
at  this  late  day,  to  claim  the  privilege  of  interpolating  this 
new  doctrine  into  the  code  of  national  law ; but  it  is  to  be 
hoped  and  expected  that  she  will  disavow  these  offensive 
proceedings,  and  formally  renounce  the  odious  pretension 
upon  which  they  rest. 

It  is  certainly  true,  that  Great  Britain  has  formally  pro- 
mulgated her  views  on  the  subject,  and  that  the  govern- 
ment of  the  United  States  has,  on  the  contrary,  as  distinctly 
denied  their  soundness.  It  is  not  the  design  of  these  remarks 
to  dwell  minutely  on  the  diplomatic  discussion  of  the  subject. 
A very  brief  reference  to  this  aspect  ot  the  case  will  be  all 
that  the  occasion  requires. 

It  is  admitted  by  the  representatives  of  both  nations,  that, 
in  the  negotiations  even  as  late  as  1841,  this  point  was  not 
discussed  between  Mr.  Webster  and  Lord  Ashburton  ; nor 
did  the  treaty  concluded  by  those  gentlemen,  in  any  way 
distinctly  touch  it.  It  was,  it  is  believed,  first  presented 
diplomatically  in  1841,  in  a correspondence  between  our 
Minister,  Mr.  Stevenson,  and  the  British  government.  In 
January,  1843,  however,  a despatch  from  Lord  Aberdeen  was 
communicated  by  Mr.  Fox,  the  British  Minister  to  this  coun- 
try, to  the  Department  of  State.  That  despatch  was  founded 
upon  an  interpretation  which  had  been  placed  upon  a brief 
paragraph  in  the  last  preceding  annual  message  of  the  Presi- 
dent, to  the  two  Houses  of  Congress.  While  commenting  upon 
the  construction  which  this  paragraph  had  received  in  Eng- 
land, his  lordship  takes  occasion  distinctly  to  avow,  that  his 
government  claimed  the  right  to  visit  merchant  ships  for 
certain  purposes,  in  time  of  peace,  and  that  this  right  it  can 
never  surrender. 

2 


10 


Mr.  Webster,  in  an  elaborate  despatch  addressed  to  Mr, 
Everett  in  March,  1843,  states,  with  great  clearness,  the 
British  claim,  the  antagonistic  doctrine  maintained  by  this 
country,  and  discusses  the  matter  at  issue  with  his  wonted 
ability. — (6  Webster’s  Works,  pp.  329,  &c.)  The  full  refer- 
ence which  has  been  made  to  this  document,  and  the  ample 
quotations  from  it  in  the  recent  discussions  in  Congress, 
dispense  with  the  necessity  for  further  allusion  to  it  on  this 
occasion. 

Even  up  to  a very  recent  period  the  question  may  be  re- 
garded, so  far  as  the  two  governments  were  concerned,  as 
simply  an  abstract  one.  The  one  party  had  asserted  a right, 
but  had,  as  yet,  never  attempted  to  enforce  it  ; the  other, 
while  controverting  the  validity  of  the  claim,  had  never  been 
required  to  resort  to  any  act  of  resistance.  Till  within  the 
last  few  months,  such  has  continued  to  be  the  position  of  the 
case.  Unfortunately  its  aspect  has  been  changed  by  officers 
in  the  British  service,  and  it  remains  to  be  ascertained  whether 
the  offensive  proceedings  of  these  functionaries  have  been 
under  governmental  instructions,  or  will  receive  govern- 
mental approval. 

The  point  at  issue,  as  is  obvious,  is  to  be  determined  by 
the  law  of  nations.  That  law  settles  the  right  one  way  or 
the  other,  and  if  its  authority  is  repudiated,  it  must  be  settled 
by  arms.  It  becomes  us,  therefore,  to  examine  the  question 
by  this  standard,  and  if,  under  that  code,  we  are  shown  to  be 
right,  we  can,  with  entire  confidence  in  the  justice  of  our 
cause,  resolve  at  all  hazards  to  maintain  it. 

It  is  not  my  intention  to  extend  this  examination  to  any 
great  length,  for  the  simple  reason  that  the  case  does  not  re- 
quire a protracted  discussion.  I shall  content  myself  with 
citations  from,  and  comments  upon  a few  books,  the  author- 
ity of  which  has  heretofore  been  held,  by  both  parties,  in  the 
highest  respect. 

As  no  one  writer  of  eminence,  unless  it  may  be  one  here- 
after to  be  commented  upon,  no  judicial  decision,  no  one 
distinguished  jurist  has  been  cited  as  maintaining  the  Eng- 


11 


lish  doctrine,  we  are  absolved  from  the  necessity  of  comparing 
and  weighing  the  relative  value  and  authority  of  different 
expositors  of  the  same  code.  It  will,  however,  appear  that 
the  subject  has  not  escaped  the  notice  of  distinguished  and 
accomplished  jurists  inbotli  countries ; but  with  the  single 
exception  alluded  to,  and  which  will  be  more  fully  noticed 
in  the  sequel,  all  have  concurred. 

The  first  authority  to  which  reference  need  be  made,  is  the 
case  of  two  Spanish  vessels,  before  Sir  William  Scott,  in 
1803,  (5  Rob.  Adm.,  36.)  Condemnation  of  these  vessels  was 
sought  on  the  ground  of  their  having  made  resistance  to  the 
belligerent  right  of  search,  attempted  by  an  English  cruiser 
during  the  war  which  had  recently  broken  out  between 
Great  Britain  and  France.  The  pendency  of  the  war  was, 
of  course,  uncontroverted,  the  belligerent  right  of  search  not 
denied,  the  actual  resistance  to  its  exercise  unquestioned,  the 
usual  consequences  of  such  resistance  conceded.  ISTotwith. 
standing  all  these  grounds  to  justify  condemnation,  restitu- 
tion was  decreed.  The  learned  judge  held,  that  “it  must  be 
shown,  in  the  first  instance,  that  the  vessel  had  reasonable 
ground  to  be  satisfied  of  the  existence  of  war,  otherwise  there 
is  no  such  thing  as  neutral  character,  nor  any  foundation  for 
the  several  duties  which  the  law  of  nations  imposes  on  that 
character.  It  is,  therefore,  a very  material  circumstance  in 
this  case,  that  at  the  time  of  sailing,  no  war  was  supposed  to 
exist,  in  the  knowledge  of  those  who  commanded  these  ves- 
sels. They  sailed  in  perfect  ignorance  of  war,  and,  conse- 
quently, unconscious  that  they  had  any  neutral  duties  to 
perform.”  “ The  whole  of  this  proceeding  is,  surely,  as  dif- 
ferent as  possible  from  a case  of  criminal  resistance  to  a lawful 
cruiser;  since  there  is  no  reason  to  suppose  that  the  vessels 
knew,  either  that  the  assailants  were  commissioned  cruisers, 
or  that  they  themselves  had  any  neutral  duties  to  discharge.” 
“If  the  acts  of  resistance  had  been  much  stronger  than  they 
appear  to  have  been  in  the  conduct  of  these  parties,  they 
would  have  been  acts  of  innocent  misapprehension  only.” 

If,  then,  the  resistance  to  an  act  of  search  by  a belligerent 


12 


cruiser  involved  no  criminality,  and  consequently  did  not 
subject  the  vessels  to  condemnation,  because  of  ignorance 
that  war  existed,  and  therefore,  that  belligerent  rights  and 
neutral  duties  existed,  although  actual  war  existed,  and  the 
assailant  was  a commissioned  cruiser  of  a belligerent  nation, 
a fortiori , would  it  follow  that,  when  in  fact  no  war  exists, 
and  there  could  be  no  belligerent  right  of  search  or  neutral 
obligation  to  submit  to  it,  such  resistance  would  be  perfectly 
justifiable  and  absolutely  rightful. 

It  ought  further  to  be  observed  that  this  case,  if  recognized 
as  authority,  as  clearly  annihilates  the  recent  English  preten- 
sion, that  there  is  a distinction  between  the  right  of  visitation 
and  search,  and  a right  of  visit.  It  appears  from  the  judg- 
ment pronounced  by  Sir  William  Scott,  that  “when  the  Brit- 
ish boats  approached  the  Spanish  vessels,  on  being  asked 
what  they  wanted,  they  answered  to  come  on  board ; to  which 
it  was  replied  from  the  Spanish  vessels,  that  if  they  had  any- 
thing to  say,  they  might  speak ; certainly  it  was  not  necessary 
for  the  purpose  of  information  that  they  should  have  gone  on 
board.”  “Nothing  more  passed  than  that  the  request  to  come 
on  board  was  refused.” 

English  lawyers  and  English  courts,  if  not  British  statesmen, 
bow  with  reverence  to  the  opinions  of  Sir  William  Scott,  upon 
questions  originating  in  the  law  of  nations  ; and  if  the  same 
paramount  authority  is  not  yielded  implicitly  to  his  judgment, 
in  other  countries,  it  is  because  it  is  believed,  and  upon  sub- 
stantial grounds,  that  even  he  yielded  too  much  to  the  polit- 
ical and  temporary  views  of  his  own  government,  in  his  ad- 
ministration of  public  law. 

When  this  eminent  judge  pronounced  this  judgment,  he 
entertained  opinions  upon  the  subject  of  the  duties  of  those 
tribunals  which  administered  the  law  of  nations,  which  are 
so  eloquently  and  beautifully  expressed  in  the  famous  case 
of  the  Swedish  Convoy,  (The  Maria,  1 Bob.  350,)  and  which 
on  every  account  deserves  to  be  quoted  and  remembered. 
“ In  forming  my  judgment,”  he  observes,  “I  trust  that  it  has 
not  escaped  my  anxious  recollection  for  one  moment,  what 


13 


it  is  that  the  duty  of  my  station  calls  for  from  me:  namely, 
to  consider  myself  here,  not  to  deliver  occasional  and  shift- 
ing opinions,  to  serve  present  purposes  of  particular  national 
interests,  but  to  administer,  with  indifference,  that  justice 
which  the  law  of  nations  holds  out,  without  distinction,  to 
independent  States,  some  happening  to  he  neutral  and  some 
belligerent.  The  seat  of  judicial  authority  is  indeed  locally 
here  in  the  belligerent  country,  according  to  the  known  law 
and  practice  of  nations ; but  the  law  itself  has  no  locality. 
It  is  the  duty  of  the  person  who  sits  here  to  determine  the 
question  exactly  as  he  would  determine  fjie  same  question  if 
sitting  at  Stockholm ; to  assert  no  pretensions  on  the  part  of 
Great  Britain  which  he  would  not  allow  to  Sweden  in  the 
same  circumstances,  and  to  impose  no  duties  on  Sweden 
which  he  would  not  admit  to  belong  to  Great  Britain  in  the 
same  character.  If,  therefore,  I mistake  the  law  in  this 
matter,  I mistake  that  which  I consider  as  the  universal  law 
upon  the  question  ; a question  regarding  one  of  the  most 
important  rights  of  belligerent  nations  relatively  to  neutrals.” 

In  another  case,  (the  Flad  Oyen , 1 Bob.  142,)  Sir  Wm. 
Scott  expresses  similar  views.  Mentioning  a pretension  of 
the  French  government,  as  an  attempt  made  for  the  first 
time  in  the  world,  in  the  year  1799,  he  adds,  “ In  my  opinion, 
if  it  could  be  shown  that,  regarding  mere  speculative  general 
principles,  such  a condemnation  ought  to  be  deemed  suffi- 
cient, that  would  not  be  enough,  more  must  be  proved ; it 
must  be  shown  that  it  is  conformable  to  the  usage  and  prac- 
tice of  nations.”  “ A great  part  of  the  law  of  nations  stands 
on  no  other  foundation.  It  is  introduced,  indeed,  by  general 
principles  ; but  it  travels  with  those  general  principles  only 
to  a certain  extent,  and  if  it  stops  there  you  are  not  at  liberty 
to  go  further,  and  to  say  that  more  general  speculation  will 
bear  you  out  in  a further  progress.” 

The  manner  and  language  in  which  these  great  doctrines 
were  enunciated  had  not  only  a great  influence  in  elevating 
the  reputation  of  the  individual  judge  from  whose  lips  they 
flowed,  but  also  to  inspire  among  other  nations  an  entire 


14 


confidence  in  the  ability,  integrity,  and  impartiality  with 
which  the  law  was  administered  in  the  prize  courts  of  Great 
Britain.  The  doctrines  themselves  were  not  new — similar 
language  had  been  employed  by  distinguished  English  jurists 
in  the  celebrated  answer  of  Great  Britain  to  the  Prussian 
memorial,  more  than  half  a century  earlier.  That  document 
was,  however,  a legal  argument  on  behalf  of  a party  in  inter- 
est. On  this  last  occasion  it  was  an  official  judicial  exposi- 
tion of  the  law  ; the  wTell  considered,  deliberate  judgment  of 
the  ablest  judge  who  had  ever  presided  in  one  of  the  most 
august  tribunals  the  world  has  ever  seen. 

One  other  citation  we  shall  venture  to  make  from  the  same 
distinguished  authority,  on  an  occasion  when  this  great  man 
had  practically,  at  least  to  some  extent,  abandoned,  or  at 
least  swerved  from  his  first  and  most  highly  approved 
opinions.  In  the  case  of  the  Fox , in  1811,  he  thus  expressed 
himself:  “It  is  strictly  true,  that  by  the  constitution  of  this 
country,  the  king  in  council  possesses  legislative  rights  over 
this  court,  and  has  power  to  issue  orders  and  instructions 
which  it  is  bound  to  obey  and  enforce ; and  these  constitute 
the  written  law  of  this  court.  These  two  propositions,  that 
the  court  is  bound  to  administer  the  laws  of  nations,  and 
that  it  is  bound  to  enforce  the  king’s  orders  in  council,  are 
not  at  all  inconsistent  with  each  other,  because  those  orders 
and  instructions  are  presumed  to  conform  themselves,  under 
the  given  circumstances,  to  the  principles  of  its  unwritten 
law.”  “The  constitution  of  this  country  relatively  to  the 
legislative  power  of  the  king  in  council,  is  analogous  to  that 
of  the  courts  of  common  law,  relatively  to  that  of  the  parlia- 
ment of  this  kingdom.”  Yet,  in  the  very  same  opinion,  he 
thus  avows  his  adherence  to  his  former  docrines:  “This 
court,”  he  says,  “is  bound  to  administer  the  law  of  nations  to 
the  subjects  of  other  countries,  in  the  different  relations  in 
which  they  may  be  placed  towards  this  country  and  its 
government.  This  is  what  other  countries  have  a right  to 
demand  for  their  subjects,  and  to  complain  if  they  receive  it 
not.  This  is  its  unwritten  law,  evidenced  in  the  course  of 


15 


its  decisions,  and  collected  from  the  common  usage  of  civi- 
lized States.” 

It  would  be  painful  to  give  utterance  to  all  the  comments 
which  suck  an  obvious  antagonism  of  views  might  warrant. 
To  some  extent,  they  have  been  criticized  in  able  comments 
by  English  authorities,  some  of  which  will  be  found  in  the 
19th  vol.  Edinb.  Keview,  p.  309,  &c. 

On  the  present  occasion,  we  shall  confine  ourselves  to  a 
few  brief  comments. 

1.  The  presumption  that  the  orders  in  council  have  been 
and  will  be  in  precise  conformity  with  the  unwritten  laws  of 
nations,  is,  it  seems  to  our  minds,  a palpable  absurdity.  If 
they  should  neither  go  beyond  nor  fall  short  of  the  unwritten 
law  of  nations,  “ collected  from  the  common  usage  of  civil- 
ized States,”  then  they  are  manifestly  altogether  supereroga- 
tory. They  clearly  cannot  indicate  what  is  or  what  can  be 
collected  from  that  common  usage.  If  they  add  anything 
to  it  or  detract  anything  from  it,  they  do  not  conform  to  it 
as  expounders  of  the  general  law,  the  foundations  of  which 
rest,  not  only  as  to  its  general  principles,  but  as  to  their 
application  to  particular  cases,  and  their  modification  under 
particular  circumstances,  on  “ the  common  usage  of  civilized 
nations,”  to  employ  the  language  of  Sir  Wm.  Scott  himself, 
in  the  opinion  last  cited,  the  monarch  of  England  has  no 
right  to  attribute  to  himself  the  character  of  a legal  exposi- 
tor— whose  expositions  are  to  be  recognized  in  courts  admin- 
istering these  laws. 

2.  If  the  British  government  may  claim  this  prerogative, 
upon  every  principle  of  the  laws  of  nations,  the  same  right 
of  interpretation  must  belong  to  every  other  government. 
It  is  unnecessary  here  to  dilate  upon  the  consequences  which 
must  flow  from  the  practical  adoption  of  this  theory.  Each 
nation,  being  its  own  interpreter  of  that  law,  by  wThich  all 
are  in  theory  equally  bound,  it  is  manifest,  that  it  will  con- 
stantly vary  with  times,  occasions,  and  countries.  It  can  no 
longer  be  said  of  it,  non  est  alia  Romce  alia  athenis.  In 
fact,  it  will  cease  to  be  law  in  any  sense  or  to  any  purpose. 


16 


3.  The  doctrine  thus  enounced  is  in  flat  contradiction  of 
the  doctrine  laid  down  by  the  same  eminent  judge  in  the 
case  of  the  Flad  Oyer , already  quoted.  There  he  insisted 
that  the  attempt  by  the  French  government  in  1799  to  intro- 
duce a new  doctrine  into  public  law,  on  mere  general  specu- 
lative principles,  was  irregular,  that  “more  must  be  proved; 
it  must  be  shown  that  it  is  conformable  to  the  usage  and 
practice  of  nations.”  No  attempt  has  ever  been  made  to 
justify  the  British  orders  in  council  on  this  ground. 

4.  The  analogy,  by  which  Sir  ¥m.  Scott  attempts  to  justify 
his  departure  from  his  former  opinions,  is  by  no  means  the 
least  objectionable  part  of  this  opinion.  He  asserts  that  the 
admiralty  court  owes  the  same  obedience  to  the  orders  of  the 
king  in  council  as  the  civil  courts  do  to  the  acts  of  Parlia- 
ment, each  exercising  and  possessing  complete  legislative 
power;  and  that  the  presumption  is  that,  all  these  orders 
and  instructions  are  and  will  be  in  accordance  wi'h  the 
unwritten  law,  the  usages  of  civilized  nations.  These 
are  novel  and  monstrous  doctrines ; to  an  American  mind 
they  appear  equally  absurd  and  con  trad  ic-tory.  No  lawyer 
in  England  ever  advanced  the  idea  that  Parliament  only 
possessed  the  faculty  and  authority  of  an  interpreter  and 
expounder  of  the  common  or  unwritten  law  of  the 
land.  It  unquestionably  does,  under  the  institutions  of 
that  country,  possess,  and  occasionally,  but  unfrequently, 
exercise  this  limited  power  of  interpreting  and  expounding 
the  common  law.  Such  declaratory  statutes,  as  they  are 
familiarly  and  technically  called,  are  very  unusual,  and  even 
in  relation  to  them,  they  are  held,  by  all  English  jurists  and 
courts,  to  be  purely  and  exclusively  prospective  in  their 
operation  They  have  never  assumed  the  power,  at  least  in 
modern  times,  of  determining  how  the  common  law  ought 
now  or  should  have  been  formerly  understood;  they  only 
declare  how  it  shall  thereafter  be  interpreted.  The  British 
Parliament  possesses  *yid  constantly  exercises  its  unquestioned 
power  of  changing  the  common  law  at  its  pleasure,  to  meet 
the  varying  exigencies  of  the  times,  to  carry  out  its  own 


17 


views  of  expediency  or  policy,  and  its  acts  supersede  and 
annul  all  that  is  in  the  common  law  at  variance  with  the 
statute.  No  presumption  ever  exists,  much  less  to  the  ex- 
tent of  determining  the  validity  of  an  act  of  Parliament,  that 
its  provisions  are  in  accordance  with  and  only  designed  to 
interpret  the  common  law.  The  avowed  object  is  to  change 
that  law.  Indeed,  some  writers  on  English  jurisprudence 
have  contended  that  the  common  law  itself  originated  in  and 
derives  its  authority  from  acts  of  Parliament,  now  lost  or 
obsolete. 

If  such  analogy  as  Sir  fm.  Scott  suggests  has  any  sub- 
stantial existence,  and  if  the  argument  he  deduces  from  it 
possesses  any  weight,  it  must  conduct  to  conclusions  which 
that  eminent  man  had  too  much  sagacity  not  to  see,  but 
which  he  had  not  the  temerity  to  enounce.  It  asserts,  sub- 
stantially, that  the  British  crown  possesses  the  supreme  and 
absolute  authority  to  interpolate,  at  any  time,  and  under  any 
circumstances,  such  new  doctrines  and  principles  as  may  suit 
its  present  views  and  policy  into  the  law  of  nations,  under 
color  of  interpreting,  expounding,  or  applying  it.  Indeed, 
Sir  ¥m.  seems,  in  two  memorable  instances,  to  have  sanc- 
tioned this  practical  result.  In  reference  to  the  doctrine  of 
blockade,  as  well  as  on  the  subject  of  the  orders  in  council, 
his  later  decisions,  utterly  at  variance  with  those  he  had 
formerly  pronounced,  can  only  be  justified  on  the  ground  of 
this  monstrous  heresy.  A power  to  give  an  authoritative 
interpretation  of  a law,  and  especially  to  direct  its  applica- 
tion to  particular  cases,  not  previously  comprehended  in  its 
terms  or  recognized  by  general  usage,  necessarily  assumes, 
either  the  legislative  authority  to  enact  or  the  judicial  power 
to  determine  questions  arising  under  it,  or  as  in  the  instances 
cited  exercises  both  functions. 

It  is  apprehended  that  the  complete  vindication  of  the 
American  doctrine,  upon  the  subject  now  under  discussion, 
might  safely  be  rested  upon  the  grounds  already  presented. 
No  one  authority  has  been  exhibited  in  contradiction  of  it ; 
no  one  adjudication  affirming  the  views  of  the  British  govern- 
8 


18 


ment ; no  one  indication  of  the  nsage  of  nations  in  conformity 
with  it,  although  the  challenge  has  been  repeatedly  given 
to  produce  one.  Until  the  last  few  months,  no  one  actual 
exercise  of  the  right  as  claimed  even  by  England  herself  has 
been  intimated;  and,  finally,  it  has  been  shown  that  her  pre- 
tension is  deficient  in  every  characteristic  which  ought  to 
distinguish  a principle  of  national  and  universal  law.  On 
the  general  doctrines  expressed  by  her  own  highest  authori- 
ties, diplomatic,  and  in  her  legislature,  or  special  adj  udication 
made  by  her  highest  tribunals,  the  claim  now  advanced  is 
wholly  unwarranted. 

It  may  be  urged  tl^at  this  is  still  but  negative  proof,  and 
to  some  extent  this  is  conceded.  What  stronger  proof,  how- 
ever, need  be  exhibited  in  resisting  a claim  than  that  which 
is  negative?  One  party  asserts  a right;  it  is  denied  by  the 
other.  The  former  holds  the  affirmative  and  is  bound  to 
support  his  pretension.  He  who  denies  may  rest  upon  the 
simple  denial,  without  more,  until  such  proof  is  exhibited. 
We  assert  that  England  has  shown  no  evidence  of  any  consent 
or  any  usage  of  nations  in  general,  sustaining  her  claim. 
This  assertion  remains  uncontradicted.  If  erroneous,  the 
error  has  not  yet  been  exposed ; the  gauntlet  thrown  down 
has  not  been  taken  up. 

In  these  observations  we  have  advanced  further  in  the 
discussion.  It  has  been  shown,  at  least  till  our  assertion  is 
denied,  and  proved  to  be  incorrect,  that  no  such  doctrine  as 
that  now  advanced  on  behalf  of  the  English  proceedings,  has 
any  foundation  in  the  law  of  nations,  and  that  it  is  altogether 
of  recent  origin,  even  with  herself,  that  the  principle  has 
never  been  maintained  by  any  writer  of  authority,  either  in 
her  own  or  in  any  other  country. 

We  now  go  further.  The  next  case  to  which  reference 
need  be  made,  among  the  decisions  of  Sir  Wm.  Scott,  is  that 
of  Le  Louis , reported  2 Dodson,  210.  This  is,  in  its  connec- 
tion with  the  preset  subject,  the  most  important  case  to  be 
found  in  the  judicial  annals  of  England.  It  occurred  in  the 
year  1817.  It  was  elaborately  argued  by  the  most  distin- 


19 


guished  advocates  at  the  bar  of  the  Court  of  Admiralty,  and 
it  elicited,  on  the  part  of  the  counsel  as  well  as  the  bench, 
proofs  of  the  most  laborious  research,  as  well  as  the  highest 
powers  of  reasoning. 

The  Le  Louis  was  a French  vessel,  captured  by  an  English 
cruiser  in  January,  1816,  near  the  coast  of  Africa,  and  was 
supposed  to  be  a slaver.  It  was  a period  of  peace.  An  at- 
tempt had  been  made  to  visit  and  search  her.  She  resisted, 
and  a conflict  ensued,  which  resulted  in  the  loss  of  several 
lives  on  each  side.  A decree  of  condemnation  on  several 
distinct  grounds  had  passed  in  the  Yice  Admiralty  Court  of 
Sierra  Leone,  and  that  judgment  was  brought  before  Sir  ¥m. 
Scott  for  review.  One  of  the  principal  points  in  the  case, 
and  one  of  prominent  importance,  involved  the  questions  of 
the  right  of  a British  cruiser  to  visit  and  search  foreign  ves- 
sels on  the  high  seas,  in  time  of  peace,  on  the  ground  of  her 
being  employed  in  the  slave-trade,  and  the  right  of  the  ship 
thus  visited  to  resist  the  attempt  by  force.  Dr.  Lushington, 
(p.  216,)  and  Dr.  Dodson,  (p.  226,  &c.,)  denied,  in  the  most 
peremptory  manner,  the  existence  of  the  right  of  visit  and 
search  in  time  of  peace,  and  challenged  their  learned  oppo- 
nents to  cite  one  judicial  decision,  or  one  authoritative  dic- 
tum, to  sustain  such  a claim.  Ho  such  authority  was  pro- 
duced. In  the  judgment,  Sir  Wm.  Scott  employs  this  lan- 
guage : “ Assuming  the  fact,  which  is  indistinctly  proved, 
that  there  was  a demand  and  a resistance,  producing  the 
deplorable  results  here  described,  I think  that  the  natural 
order  of  things  compels  me  to  inquire,  first,  whether  the 
party  who  demanded  had  a right  to  search ; for,  if  not,  not 
only  was  the  resistance  to  it  lawful,  but  likewise  the  very 
fact  on  which  the  other  ground  of  condemnation  rests  is  to- 
tally removed.  For  if  no  right  to  visit  and  search,  then  no 
ulterior  right  of  seizing  and  bringing  in  and  proceeding  to 
adjudication,  &c.”  Upon  the  first  question,  whether  the 
right  to  search  exists  in  time  of  peace,  I have  to  observe  two 
principles  of  public  law  are  generally  recognized  as  funda- 
mental. One  is  the  perfect  equality  and  entire  indepen- 


20 


dence  of  all  distinct  States.  Relative  magnitude  creates  no* 
distinction  of  right ; relative  imbecility,  whether  permanent 
or  casual,  gives  no  additional  right  to  the  more  powerful 
neighbor;  and  any  advantage  seized  upon  that  ground  is 
mere  usurpation.  This  is  the  great  foundation  of  public  law, 
which  it  mainly  concerns  the  peace  of  mankind,  both  in  their 
politic  and  private  capacities,  to  preserve  inviolate.  The 
second  is,  that  all  nations  being  equal,,  all  have  an  equal 
right  to  the  uninterrupted  use  of  the  unappropriated  parts 
of  the  ocean  for  their  navigation.  In  places  where  no  local 
authority  exists,  where  the  subjects  of  all  States  meet  upon 
a footing  of  entire  equality  and  independence,  no  one  State, 
or  any  of  its  subjects,  has  a right  to  assume  or  exercise  au- 
thority over  the  subjects  of  another.  I can  find  no  authority 
that  gives  the  right  of  interruption  to  the  navigation  of  States 
in  amity  upon  the  high  seas , excepting  that  which  the  rights 
of  war  gives  to  both  belligerents  against  neutrals . This  right,, 
incommodious  as  its  exercise  may  occasionally  be  to  those 
who  are  subjected  to  it,  has  been  fully  established  in  the  le- 
gal practice  of  nations,  having  for  its  foundation  the  necessi- 
ties of  self-defence,  in  preventing  the  enemy  from  being 
supplied  with  the  instruments  of  war,  and  from  having  his 
means  of  annoyance  augmented  by  the  advantages  of  mari- 
time commerce” — pp.  210-41 . “ At  present,  under  the  law  as 
now  generally  understood  and  practiced,  no  nation  can  exer- 
cise a right  of  visitation  and  search  upon  the  common  and 
unappropriated  parts  of  the  sea,  save  only  on  the  belligerent 
claim.  If  it  be  asked  why  the  right  of  search  does  not  exist 
in  time  of  peace  as  well  as  in  war,  the  answer  is  prompt ; 
that  it  has  not  the  same  foundation  on  which  alone  it  is  tole- 
rated in  war — the  necessities  of  self-defence.  They  introduced 
it  in  war,  and  practice  has  established  it.  No  such  necessi- 
ties have  introduced  it  in  peace,  and  no  such  practice  has 
established  it” — p.  245.  In  page  225,  Sir  ¥m  Scott  adverts 
to  a very  interesting  fact,  having  an  important  bearing  upon 
the  question  under  consideration;  he  says,  “The  project  of 
the  treaty  proposed  by  Great  Britain  to  France,  in  1815,  is, 


21 


4 that  'permission  should  he  reciprocally  given  by  each  nation 
to  search  and  bring  in  the  ships  of  each  other and  when 
the  permission,  of  neutrals  to  have  their  ships  searched  is 
asked  at  the  commencement  of  a war,  it  may  then  be  time 


admit 


stands  on  exactly  the  same 


footing  in  time  of  war  and  in  time  of  peace.”*  Again,  p# 
257,  “ If  I felt  it  necessary  to  press  the  consideration  further, 
it  would  be  by  stating  the  gigantic  mischiefs  which  such  a 
claim  is  likely  to  produce.  It  is  no  secret,  particularly  in 
this  place,  that  the  right  of  search,  in  time  of  war,  though 
unquestionable,  is  not  submitted  to  without  complaints  loud 
and  bitter,  in  spite  of  all  the  modifications  that  can  be  applied 
to  it.”  “ If  it  be  assumed  by  force,  and  left  at  large  to  ope- 
rate reciprocally  upon  the  ships  of  every  State,  (for  it  must 
be  a right  of  all  against  all,)  without  any  other  limits  as  to 
time,  place,  or  mode  of  inquiry,  than  such  as  the  prudence 

* In  Mr.  Walsh’s  appeal,  p.  3*75,  published  in  1819,  there  is  a passage  illus- 
trating this  point  in  Sir  Wm.  Scott’s  argument.  “In  the  first  negotiations 
respecting  the  (slave)  trade,  which  Lord  Castlereagh  opened  with  the  French 
cabinet  after  the  treaty  of  1814,  he  suggested,  as  a desirable  arrangement,  the 
concession  of  a mutual  right  of  search  and  capture  in  certain  latitudes,  between 
France  and  Great  Britain,  in  order  to  prevent  an  illegal  exportation  from  the 
coast  of  Africa.  The  Duke  of  Wellington  made  the  proposition  to  the  Prince 
of  Benevento,  but  soon  discovered  that  it  was  too  disagreeable  to  the  French 
government  and  nation  to  admit  a hope  of  its  being  urged  with  success.  I do 
not  find  from  the  history  of  the  Conferences  at  Vienna,  in  1815,  that  it  was 
more  than  hinted  in  these  conferences.  Spain  and  Portugal,  however,  in  their 
mock  renunciation  of  the  trade  north  of  the  equinoctial  line,  acceded  to  a 
stipulation  of  like  tenor.  Great  satisfation  was  expressed  in  Parliament  with 
the  arrangement,  when  the  Spanish  treaty  came  under  discussion.  The  intro- 
duction of  the  right  of  search  and  bringing  in  for  condemnation,  in  time  of  peace, 
was  declared  to  be  a precedent  of  the  utmost  importance.”  On  the  same  au- 
thorty  it  appears  that,  in  June,  1818,  Lord  Castlereagh  addressed  a special  letter 
to  the  American  Minister,  enclosing  copies  of  the  treaties  made  with  Spain  and 
Portugal,  and  inviting  the  government  of  the  United  States  to  enter  into  the 
plan  digested  in  those  treaties  for  the  suppression  of  the  slave-trade,  which 
must  otherwise  prove  irreducible.  The  answer  of  the  American  government, 
communicated  at  the  end  of  December,  by  the  American  Ambassador,  is  de- 
tailed in  the  report  of  the  institution.  He  asserts  the  deep  and  unfeigned  soli- 
citude of  the  United  States  for  the  universal  extirpation  of  the  slave-trade, 
but  with  all  due  comity  declines  the  proposed  arrangements  as  being  of  a 
character  “not  adapted  to  the  circumstances  or  institutions  of  the  United 
States.”  Mr.  W.  pointedly  remarks,  “Truly  the  United  States  had  sufficiently 
proved  the  British  right  of  search  in  time  of  war  to  be  careful  not  to  create 
one  for  the  season  of  peace  ” “In  July,  1816,  a circular  intimation  was  given 
to  all  British  cruisers  that  the  right  of  search,  being  a belligerent  right,  had 
ceased  with  the  war.” — Wheaton's  Right  of  Search , 25.  See  also  American 
State  Papers,  Foreign  Relations,  vol.  4,  p.  400,  and  Wheaton,  from  p.  25. 


22 


of  particular  States,  or  the  individual  subjects  may  impose, 
I leave  the  tragedy  contained  in  this  case  to  illustrate  the 
effects  that  are  likely  to  arise  in  the  very  first  stages  of  the 
process,  without  adding  to  the  account,  what  must  be  consid- 
ered a most  awful  part  of  it,  the  perpetual  irritation  and  the 
universal  hostility  which  are  likely  to  ensue.” 

It  has,  it  is  believed,  been  fully  shown  in  the  preceding 
pages,  that  the  claim  of  England,  under  the  law  of  nations, 
to  exercise  any  right,  be  it  called  visit,  visitation,  or  search, 
in  time  of  peace,  is  not  only  of  modern,  but  very  recent  ori- 
gin ; that  it  has  never  been  asserted  by  any  other  nation ; 
that  it  is  entirely  destitute  of  those  grounds  on  which  the 
entire  law  of  nations  and  each  of  its  distinct  principles  can 
alone  find  any  assured  foundation,  viz : a general  recognition 
by  the  civilized  nations  of  the  world.  It  would  not  be  easy 
to  add  to  the  force  of  the  argument  of  Sir  ¥m.  Scott  in  re- 
butting every  ground  upon  which  Britain  has  claimed  this 
right,  or  to  sustain  every  principle  by  which  that  pretence 
has  been  controverted  by  the  United  States. 

It  now  remains  to  examine  the  views  presented  on  this 
subject  by  Mr.  Phillemore,  the  most  recent  distinguished 
author  in  England  upon  the  laws  of  nations.  It  is  but  justice 
to  this  gentleman  to  say  that  his  valuable  work  is  character- 
ised by  diligent  research,  extensive  and  profound  erudition, 
and,  in  the  main,  by  fairness  and  impartiality.  On  this  par- 
ticular branch  of  his  subject,  it  will  devolve  upon  us  to  point 
out  what  we  cannot  but  apprehend  to  be  an  aberration  from 
that  clearness  and  fairness  which  in  general  we  acknowledge 
to  belong  to  him. 

The  third  chapter  of  his  third  volume  is  appropriated  to 
the  discussion  of  the  right  of  visit  and  search.  He  com- 
mences by  citing  two  passages  from  French  writers,  to  show 
that,  even  in  time  of  peace,  it  is  not  lawful  for  a vessel  to 
sail  upon  the  high  seas  without  any  papers  on  board  indica- 
ting the  nation  to  which  she  belongs,”  &c.  From  this  gene- 
ral principle  he  proceeds saltern  to  assert  “that  a vessel 
may,  under  extraordinary  circumstances  of  grave  suspicion, 


23 


be  visited  in  time  of  peace  on  the  high  seas ; for  how  other- 
wise could  it  be  ascertained  whether  or  not  she  carried  the 
proper  papers  on  board?  Or  for  what  purpose,  if  she  may 
not  be  visited,  is  she  to  carry  them?  These  circumstances  of 
“ grave  suspicion”  are  to  be  found  in  some  “ extraordinary 
case,”  and  to  attach  to  some  particular  “ vessel.”  Without 
further  specification  the  doctrince  advanced  is  certainly  vague 
and  obscure. 

The  proposition,  at  least  the  ground  on  which  it  is  sup- 
posed to  rest,  is  clothed  rather  in  the  form  of  an  interroga- 
tion than  in  that  of  direct  assertion.  It  may,  without  merit- 
ing the  opprobrium  of  merely  punning,  be  said  that  it  comes 
in  a very  questionable  shape.  It  may  be  answered  in  the 
same  form.  Is  there  any  law  of  nations  which  prescribes  the 
form  and  character  of  the  papers  which  a vessel  ought  to 
carry  in  time  of  peace  ? Are  not  these  directed  in  every 
nation  by  its  own  peculiar  laws  ? Each  nation  has  a right  to 
prescribe  to  its  own  vessels  what  papers  they  shall  carry  to 
exhibit  their  national  character,  and  require  them  to  conform 
to  its  own  municipal  regulations.  Sometimes,  by  conven- 
tions between  different  powers,  papers  of  another  kind  are 
required  under  peculiar  circumstances,  or  to  provide  against 
particular  incidents.  But  it  cannot  be  pretended  that  any 
particular  description  of  papers  is  required  by  the  law  of 
nations ; that  a neutral  cruiser  has  a right  to  detain,  for  the 
purpose  of  ascertaining  whether  a ship  is  furnished  with 
such  documents,  or  that  the  want  of  such  papers  would  jus- 
tify a foreign  vessel  in  the  seizure  of  such  vessel,  or  subject 
her  to  condemnation.  The  right  of  search  must  exist  before 
such  an  inquiry  can  be  lawfully  made.  The  want  of  proper 
papers  may  prevent  an  original  clearance  from  a native  port, 
may  interfere  with  entry  into  a foreign  port  of  destination, 
may  warrant  the  cruisers  of  any  nation  or  its  revenue  officers 
wfithin  their  appropriate  sphere  of  jurisdiction,  in  visiting 
vessels  which,  within  such  jurisdiction,  bear  their  respective 
national  flag,  or  come  within  the  boundaries  of  their  respec- 
tive ports  or  harbors,  to  enforce  the  revenue  or  other  muni- 


24 


cipal  laws  of  their  own  countries.  Surely  Mr.  Phillemore 
wiibscarcely  contend  that  an  American  or  Spanish  cruiser 
has  a right,  either  on  the  broad  ocean  or  in  the  English  chan- 
nel, to  visit  a vessel  sailing  under  the  British  flag  to  see 
whether  she  is  provided  with  such  papers  as  the  law  of  its 
own  country  requires. 

His  second  proposition  being  a mere  inference  from  the 
preceding,  is,  it  is  conceived,  already  answered  in  what  has 
been  said. 

The  next  doctrine  advanced  by  Mr.  Phillemore  demands 
a more  distinct  and  serious  reply.  “It  is  quite  true,”  says 
he,  “ that  the  right  of  visit  and  search  is  strictly  a belligerent 
right.”  He,  however,  continues : “ But  the  right  of  visit  in 
time  of  peace,  for  the  purpose  of  ascertaining  the  nationality 
of  a vessel,  is  a part,  indeed,  but  a very  small  part,  of  the 
belligerent  right  of  visit  and  search.” 

For  the  first  clause  in  this  paragraph  the  author  cites  the 
case  of  Le  Louis , from  2 Dodson ; La  Jeune  Eugenie , 2 
Mason,  409,  as  cited  in  the  Antelope , 10  Wheat,  66.  Ho  au- 
thority is  referred  to  to  sustain  the  second  and  most  import- 
ant clause.  It  is  made  to  rest  on  the  simple  authority  of  Mr. 
Phillemore  himself.  The  language  employed  is  not  charac- 
terised by  the  clearness  and  distinctness  usually  displayed 
by  the  learned  author.  He  limits  the  right  which  he  asserts 
to  one  single  object,  “ the  purpose  of  ascertaining  the  nation- 
ality of  a vessel.”  He  does  not,  however,  intimate  in  whom 
the  right  exists  to  determine  or  to  inquire  into  this  nation- 
ality, under  what  circumstances  or  to  what  extent  such  right 
may  be  exercised,  what  is  to  result  from  the  fact  when  ascer- 
tained, or  what  penalties  may  attach  to  the  vessel  resisting 
such  an  attempt  to  visit.  Nor  does  he  point  out  by  what 
evidence  this  nationality  is  to  be  established.  What  is  even 
more  remarkable,  he  omits  to  explain  the  extraordinary  propo- 
sition, that  a right  which  he  claims  may  be  exercised  in  time 
of  peace,  can  possibly  be  a part,  however  small,  of  a bellige- 
rent right.  Without  any  explanation  we  must  say,  with  all 
due  respect  to  the  learned  commentator,  the  proposition  is  to 
our  minds  unintelligible,  contradictory,  and  preposterous. 


25 


Had  Mr.  Phillemore  diligently  examined  the  cases  to  which 
he  refers  as  sustaining  the  first  clause  of  the  paragraph,  he 
could  not  have  failed  to  perceive,  that  they  as  distinctly  con- 
tradict and  repudiate  his  last  position  as  they  affirm  the  first. 
The  citations  already  made  from  Le  Louis  are  in  direct  op- 
position to  the  view  of  the  commentator.  In  the  case  of  La 
Jeune  Eugenie , Mr.  Justice  Story  (2  Mason,  436)  thus  ex- 
presses himself:  “I  am  free  to  admit,  as  a general  proposi- 
tion, that  the  right  of  visitation  and  search  of  foreign  ships 
on  the  high  seas,  can  be  exercised  only  in  time  of  war,  in 
virtue  of  a belligerent  claim,  and  that  there  is  no  admitted 
principle  or  practice  which  justifies  its  exercise  in  time  of 
peace.”  The  Antelope , in  10  Wheaton,  was  a case  of  a foreign 
vessel.  Chief  Justice  Marshal,  in  delivering  the  opinion  of 
the  court,  overrules  so  much  of  the  judgment  in  La  Jeune 
Eugenie  as  had  sustained  the  doctrine  that  the  slave-trade 
was  prohibited  by  the  law  of  nations.  In  another  part  of  his 
judgment,  he  says: 

“ If  it  (the  slave-trade)  is  consistent  with  the  law  of  nations, 
it  cannot,  in  itself,  be  piracy.  It  can  be  made  so  only  by 
statutes  ; and  the  obligation  of  the  statute  cannot  transcend 
the  legislative  power  of  the  State  which  may  enact  it.  If  it 
be  neither  repugnant  to  the  law  of  nations,  nor  piracy,  it  is 
almost  supurflnous  to  say,  in  this  court,  that  the  right  of 
bringing  in  for  adjudication,  in  time  of  peace,  even  where 
the  vessel  belongs  to  a nation  which  prohibited  the  trade, 
cannot  exist.  The  courts  of  no  country  execute  the  penal  laws 
of  another ; and  the  course  of  the  American  government  on 
the  subject  of  visitation  and  search  would  decide  any  case  in 
which  that  right  had  been  exercised  by  an  American  cruiser, 
on  the  vessel  of  a foreign  nation  not  violating  our  municipal 
laws,  against  the  captors,”  (pp.  122,  123.) 

So  much  for  the  very  cases  referred  to  by  Mr.  Phillemore 
in  this  very  paragraph.  They  effectively  annihilate  his  prop- 
osition. 

The  learned  author  then  quotes  a passage  from  Bynker- 
shock,  which  he  himself  admits  was  part  of  an  argument  for 


26 


the  right  of  search  in  time  of  war,  and  then  observes,  “surely 
this  reasoning  applies  to  the  right  of  ascertaining  the  national 
character  of  a suspected  pirate,  in  time  of  peace;  and  it  may 
be  added,  that  it  appears  to  have  been  so  considered  by  no 
less  a person  than  Mr.  Chancellor  Kent.” 

So  far  as  regards  this  logic,  if  so  it  may  be  called,  it  ha& 
been  abundantly  refuted  by  Sir  William  Scott  in  the  Louis ,. 
where  he  refused  to  attach  the  smallest  importance  to  “a 
solemn  declaration  of  very  eminent  persons  assembled  in 
Congress,  whose  rank,  high  as  it  is,  is  by  no  means  the  most 
respectable  foundation  for  the  weight  of  their  opinion.” 

The  invocation  of  Chancellor  Kent,  as  sustaining,  to  any 
extent,  the  position  contended  for,  must  not,  however,  be 
allowed  to  escape  with  so  slight  a notice.  In  the  third  edi- 
tion of  his  commentaries,  page  153,  this  able  jurist  thus  de- 
clares his  view  of  the  law.  It  is  given  in  his  precise  words 

“ In  order  to  enforce  the  rights  of  belligerent  nations  against 
the  delinquencies  of  neutrals , and  to  ascertain  the  real,  as 
well  as  assumed,  character  of  all  vessels  on  the  high  seas,  the 
law  of  nations  arms  them  with  the  practical  power  of  visita- 
tion and  search.  The  duty  of  self-preservation  gives  to  bellig- 
erent nations  this  right.  It  is  founded  upon  necessity,  and 
is  strictly  and  exclusively  a war  right , and  does  not  exist  in 
time  of  peace.  All  writers  upon  the  law  of  nations,  and  the 
highest  authorities,  acknowledge  the  right  as  resting  on  sound 
principles  of  public  jurisprudence,  and  upon  the  institutes 
and  practice  of  all  great  maritime  powers.”  The  authorities 
referred  to  in  support  of  this  doctrine  are  Mattel — the  Maria, 
1 Kob.,  287 ; 2 Dodson,  245,  {Le  Louis,  a passage  we  have 
already  cited,  in  which  the  exercise  of  such  right  in  time  of 
peace  is  distinctly  repudiated ;)  the  Marianna  Flora,  11 
Wheat.,  42,  a case  presently  to  be  cited. 

By  what  process  of  reasoning  such  language  can  be  made 
to  sustain  a proposition  which  it  distinctly  repudiates,  and 
which  is  equally  at  variance  with  each  of  the  authorities 
quoted  by  the  Chancellor;  by  what  Procrustean  method, 
doctrines,  so  distinctly  opposed,  can  be  brought  to  sustain  a 


27 


proposition  which  they  appear  to  condemn  and  disavow, 
Mr.  Phillemore  has  not  thought  it  expedient  to  explain. 
From  the  terms  of  high  enlogium  he  applies  to  this  distin- 
guished American  jurist,  it  might  be  inferred  that  he  was 
familiar  with  his  writings,  or  at  all  events,  with  his  great 
production — his  commentaries — to  which  he  so  frequently 
refers.  If  what  has  already  been  said  furnishes  some  indica- 
tions, to  say  the  least,  of  unfairness  and  misrepresentation, 
what  shall  be  said  of  the  accumulated  evidence  now  to  be 
produced?  In  page  25  of  the  same  volume  which  Mr.  Phil- 
lemore professes  to  quote,  the  learned  Chancellor  says  : 

“The  open  sea  is  not  capable  of  being  possessed  as  private 
property.  The  free  use  of  the  ocean  for  navigation  and  fish- 
ing is  common  to  all  mankind,  and  the  public  jurists,  gener- 
ally and  explicitly,  deny  that  the  main  ocean  can  ever  be 
appropriated.  The  subjects  of  all  nations  meet  there  in  time 
of  peace,  on  a footing  of  entire  equality  and  independence. 
Ho  nation  has  any  right  of  jurisdiction  at  sea,  except  it  be 
over  the  persons  of  its  own  subjects,  in  its  own  vessels;  and 
so  far  territorial  jurisdiction  may  be  considered  as  preserved ; 
for  the  vessels  of  a nation  are,  in  many  respects,  considered 
as  portions  of  its  territory,  and  persons  on  board  are  protected 
and  governed  by  the  law  of  the  country  to  which  the  vessel 
belongs.  This  jurisdiction  is  confined  to  the  ship  ; and  no 
one  ship  has  a right  to  prohibit  the  approach  of  another  at 
sea,  or  to  draw  round  her  a line  of  territorial  jurisdiction, 
within  which  no  other  is  at  liberty  to  intrude.  Every  vessel, 
in  time  of  peace,  has  a right  to  consult  its  own  safety  and 
convenience,  and  to  pursue  its  own  course  and  business,  with- 
out being  disturbed,  when  it  does  not  violate  the  rights  of 
others.” 

Enough  has  been  said,  it  is  believed,  to  show  how  much 
confidence  is  justly  to  be  attributed  to  the  candor  and  im- 
partial judgment  of  Mr.  Phillemore  ; but  we  cannot  resist 
the  opportunity  of  adverting  to  another  specimen  of  the  same 
character.  Appended  to  the  citation  above  adverted  to  from 
Bynkershock,  which,  while  used  as  an  argument  in  favor  of 


28 


the  belligerent  right  of  visitation  and  search,  he  intimates  is1 
equally  applicable  to  the  existence  of  the  same  right  in  time 
of  peace,  which  is  that  a ship  is  hound  to  have  on  hoard  pa- 
pers  which  will  demonstrate  her  national  character,  he  again 
cites  American  authorities.  He  refers  to  1 Paine,  594 ; 1 
Kent  Com.,  161,  158. 

How,  the  case  cited  from  Paine  is  that  of  Catlett  vs.  Pa- 
cific Insurance  Company.  The  action  was  brought  upon  a 
policy  of  insurance,  to  which  citizens  of  the  United  States 
were  alone  parties,  to  which  there  actually  existed,  or  was 
implied,  a warranty  that  the  vessel  was  American.  The 
question  was  whether  the  party  had  shown  a compliance 
with  this  condition.  The  court  expressed  its  opinion  that  a 
register  was  sufficient  evidence  of  this  fact.  “ There  being  a 
state  of  universal  peace,  and  no  treaty  provisions  applicable 
to  the  voyage,  the  register  was  all  that  could  be  necessary  to 
show  the  national  character.  No  question  of  belligerent  or 
neutral  rights  could  arise.”  Two  cases  were  cited  in  the  ar- 
gument of  the  case,  (14  Johns,  316 ; 2 Serg.  and  P.,  133.) 
It  may  be  sufficient  to  say  that  all  these  cases  involved  ques- 
tions of  purely  municipal  law,  what  were  the  documents  re- 
quired by  the  American  law  under  our  own  revenue  system. 
These  questions  arose  in  American  courts,  and  were  to  be 
adjudicated  by  the  law  of  the  land.  Hot  a word  is  said  as 
to  the  evidence  which  the  law  of  nations  may  require  to  es- 
tablish the  nationality  of  a vessel,  and  this  was  the  point,  and 
the  only  point,  which  it  was  pertinent  to  Mr.  Phille more’s 
argument  to  shew. 

In  a previous  passage  from  his  work,  which  meets  with,  as 
it  deserves,  our  almost  entire  concurrence  and  approbation,  he 
thus  expresses  himself,  in  his  chapter  on  the  general  character 
and  duty  of  tribunals  of  prize.  Such  a court,  he  says,  p.  533, 
“ ought  to  command  the  respect  of  nations  } it  ought  to  be 
above — not  slander,  indeed,  for  then  it  would  not  be  a human 
institution — but  just  and  reasonable  suspicion.  It  ought  to 
administer  international  not  municipal  law,  except  in  so  far 
as  it  might  happen  that  the  latter  was  identical  with  or 


29 


declaratory  of  the  former.  Its  procedure  ought  to  be  open 
and  exposed  to  all  criticism.  It  ought  to  allow  every  liberty 
of  speech  to  the  claimant  or  his  representative,  as  well  as  to 
the  belligerent  or  his  representative.  It  should  administer  a 
consistent  law,  upon  certain  and  known  principles,  impar- 
tially applied  to  all  States  and  to  their  subjects.  The  high 
standard  of  the  great  philosopher  and  jurist  of  antiquity, 
(neque  erit  alia  lex  Roman,  alia  Athenis  ; alia  nunc , alia 
jposthac ,)  should  be  perpetually  before  its  eyes.  It  should 
always  remember  that  the  law  which  it  has  to  administer  is 
not  of  one  character  at  Rome  and  another  at  Athens,  but 
one  and  the  same  everywhere,  followed  and  applied,  as  far  as 
human  infirmity  will  permit,  upon  the  principles  of  immu- 
table right  and  eternal  justice.” 

So  long  as  the  English  admiralty  courts  acted  upon  these 
principles  and  rigidly  practised,  them,  so  long  as  British 
jurists  acknowledged  and  maintained  them,  those  tribunals 
and  judges  were  the  admiration  of  the  world — all  recognized 
the  ability,  the  integrity  with  which  their  judgments  were 
pronounced,  and  their  opinions  were  universally  revered. 

It  is  hoped  that  another  opportunity  will  be  soon  afforded 
them  of  sustaining  this  high  reputation.  If  every  American 
vessel  which  has  been  stopped  in  her  voyage  shall  institute 
proceedings  in  the  British  courts,  claiming  damages  for  the 
stoppage  and  detention  of  them  on  their  voyage,  and  claim 
demurrage,  and  if,  particularly,  those  that  have  been  fired 
into  or  stopped  by  force,  should  institute  similar  proceedings, 
it  would  be  ascertained  how  far  British  courts,  assuming  to 
administer  the  laws  of  nations,  would  maintain  their  former 
character. 

We  have  thus  inadvertently  been  brought  off,  for  a mo- 
ment, from  the  immediate  subject  before  us;  to  that  we  shall 
now  return,  to  meet  the  only  remaining  point  which  it  ap- 
pears necessary  to  discuss.  The  English  government,  and 
its  advocates,  endeavor  to  support  their  views  upon  this 
subject  by  a new  sophism  ; they  try,  at  least  by  assertion, 
neither  by  argument,  reason,  nor  authority,  to  draw  a line 


30 


of  distinction  between  the  right  of  visit  and  that  of  visitation 
and  search.  They  have  repeatededly  been  challenged  to 
produce  any  individual  authority  which  mentions,  much  less 
asserts,  this  distinction.  To  this  challenge  no  response  has 
been  yet  made  by  either  jurist  or  diplomat.  On  the  Ameri- 
can side  it  is  denied  that  there  is  any  foundation  for  such 
distinction  beyond  the  mere  grammatical  one  between  a 
verb  and  a substantive.  We  understand  the  verb  visit  to 
signify  to  make  a visitation ; we  understand  visitation  as  the 
act  of  visiting.  Such  is  the  acceptation  of  these  words,  as  is 
believed  without  exception,  by  every  writer  and  lexicogra- 
pher.  Lord  Aberdeen,  who  it  is  believed  was  the  first  author 
of  this  distinction,  can  hardly,  even  in  Great  Britain,  be  re- 
garded as  of  higher  authority  than  Lord  Castlereagh,  Mr. 
Canning,  and  other  accomplished  English  statesmen  ; or  than 
Sir  Wm.  Scott,  Dr.  Lushington,  Dr.  Dodson,  to  whom  it  was 
apparently  unknown.  He  belongs  to  the  Scotch  school, 
admirably  accomplished  in  all  the  refinements  of  meta- 
physics, but  to  whom  neither  Americans  nor  English  would 
ordinarily  be  disposed  to  resort  as  umpires  in  a question  as 
to  the  precise  signification  of  English  words. 

The  distinction,  which  we  consider  as  a mere  specimen  of 
what  an  eminent  Scotch  writer  has  called  logomachy,  has 
never  received  the  sanction  of  any  British  judge,  or  of  any 
British  jurist,  anterior  to  the  time  of  Mr.  Phillemore.  It  is 
utterly  unknown  on  the  continent  of  Europe.  In  the  most 
approved  French  dictionaries  we  find  that  the  word  visiter 
is  translated  into  English  by  the  phrase  to  search , visiter  les 
merchandises , to  search  commodities ; visiter  unnavine , to 
search  a ship.  As  Mr.  Webster  and  Mr.  Wheaton  have  re- 
marked, no  writer  on  the  continent  has  ever  afforded  the  least 
sanction  to  this  modern  distinction. 

In  the  absence  of  all  authority  to  the  contrary,  we  may  be 
permitted  to  quote,  as,  at  all  events  in  our  judgment,  con- 
clusive upon  the  subject,  the  solemn  exposition  of  the  law 
by  the  Supreme  Court  of  our  own  country,  in  the  case  of  the 
Marianna  Flora , reported  in  11  Wheaton.  This  case  is 


31 


specially  adverted  to,  and  a long  citation  from  the  judgment 
of  the  Supreme  Court  is  given  by  Mr.  Phillemore,  p.  422. 
But  the  quotation  made  by  him  would  fail  to  convey  any- 
thing approaching  to  a correct  exposition  of  the  views 
expressed  by  the  august  tribunal  by  whom  the  case  was 
decided,  and  is  likely  to  mislead  readers  who  rely  upon  Mr. 
Phillemore  as  an  expositor  of  the  law. 

Correctly  to  understand  and  properly  to  appreciate  the 
language  of  the  court,  especially  when  pronounced  at  some 
length  in  the  exposition  of  the  law  in  a cas e,  primce,  imjpres- 
sionis,  the  facts  and  circumstances  of  the  case  should  be 
fully  and  fairly  presented.  This  Mr.  Phillemore  has  failed 
or  omitted  to  do.  Be  it  our  part  to  supply  his  deficiency. 
So  far  as  the  present  question  is  in  any  way  affected  by  this 
case,  the  facts  were,  as  stated  by  the  reporter. 

On  the  morning  of  the  5th  November,  1821,  the  Alligator 
and  the  Marianna  Flora  were  mutually  descried  by  each 
other  on  the  ocean,  at  the  distance  of  about  nine  miles ; the 
Alligator,  being  on  a cruise  against  pirates  and  slave-traders, 
under  the  instri  ctions  of  the  President,  and  the  Portuguese 
vessel  being  on  a voyage  from  Bahia  to  Lisbon,  with  a valu- 
able cargo.  The  two  vessels  were  then  steering  on  courses 
nearly  at  right  angles  with  each  other  ; the  Marianna  Flora, 
being  under  the  lee  bow  of  the  Alligator.  A squall  soon 
afterwards  came  on,  which  occasioned  an  obscuration  for 
some  time.  Upon  the  clearing  up  the  of  weather,  it  appeared 
that  the  Marianna  Flora  had  crossed  the  point  of  intersection 
of  the  courses  of  the  two  vessels,  and  was  about  four  miles 
distant  on  the  weather  bow  of  the  Alligator.  Soon  after- 
wards she  shortened  sail  and  hove  to,  having  at  this  time  a 
vane  or  flag  on  her  mast,  somewhat  below  the  head,  which 
induced  Lieutenant  Stockton  (the  commander  of  the  Alliga- 
tor) to  suppose  she  was  in  distress  or  wished  for  information. 
Accordingly  he  deemed  it  his  duty,  upon  this  apparent  invi- 
tation, to  approach  her,  and  immediately  changed  his  course 
towards  her.  When  the  Alligator  was  within  long  shot  of 
the  Portuguese  ship,  the  latter  fired  a cannon-shot  ahead  of 


32 


the  Alligator,  and  exhibited  the  appearance  and  equipments 
of  an  armed  vessel.  Lieutenant  Stockton  immediately  hoisted 
the  United  States  flag  and  pennant.  The  Marianna  Flora 
then  fired  two  more  guns,  one  loaded  with  grape,  which  fell 
short,  the  other  with  round  shot,  which  passed  over  and  be- 
yond the  Alligator.  This  induced  Lieutenant  Stockton  to 
believe  her  to  be  a piratical  or  a slave  vessel,  and  he  directed 
his  own  guns  to  be  fired  in  return ; but  as  they  were  only 
cannonades,  they  did  not  reach  her.  The  Alligator  continued 
to  approach,  and  the  Marianna  Flora  continued  firing  at  her 
at  times,  until  she  came  within  musket  shot,  and  then  a 
broadside  from  the  Alligator  produced  such  intimidation, 
that  the  Portuguese  ship  almost  immediately  ceased  firing. 
At  that  time,  and  not  before,  the  Portuguese  ship  hoisted  her 
national  flag.  Lieutenant  Stockton  ordered  the  ship  to  sur- 
render and  send  her  boat  on  board,  which  was  accordingly 
done.  He  demanded  an  explanation,  and  the  statement  made 
to  him  by  the  Portuguese  master  and  other  officers  was,  that 
they  did  not  know  him  to  be  an  American  ship  of  war,  but 
took  him  to  be  a piratical  cruiser.  Under  these  circumstances 
Lieutenant  Stockton  determined  to  send  her  into  the  United 
States  on  account  of  this,  which  he  deemed  a piratical  aggres- 
sion. Such  were  the  facts  upon  which  the  court  was  to  decide. 
The  vessel  and  cargo  had  been  restored  with  the  assent  of 
the  government  and  the  captors,  and  the  only  remaining 
question  was  as  to  the  liability  of  the  captors  to  damages. 
The  judgment  was  pronounced  by  Mr.  Justice  Story.  In  p. 
41,  the  points  as  contended  for  by  the  claimants  are  thus 
presented  : “They  contend  that  they  are  entitled  to  damages; 
first,  because  the  conduct  of  Lieutenant  Stockton,  in  the  ap- 
proach and  seizure  of  the  Marianna  Flora,  was  unjustifiable; 
and  second,  because,  at  all  events,  the  subsequent  sending 
her  in  for  adjudication,  was  without  any  reasonable  cause. 
In  considering  these  points,  it  is  necessary  to  ascertain  what 
are  the  rights  and  duties  of  armed  and  other  ships,  navigating 
the  ocean  in  time  of  peace. 

“ It  is  admitted  that  the  right  of  visitation  and  search  does 


33 


not,  under  such  circumstances,  belong  to  the  public  ships  of 
any  nation.  The  right  is,  strictly,  a belligerent  right,  allowed 
by  the  general  consent  of  nations  in  time  of  war,  and  limited 
to  those  occasions.  It  is  true,  that  it  has  been  held  in  the 
courts  of  this  country,  that  American  ships  offending  against 
our  laws,  and  foreign  ships  in  like  manner,  offending  within 
our  jurisdiction,  may  afterward  be  pursued  and  seized  upon 
the  ocean,  and  rightfully  brought  into  our  ports  for  adjudi- 
cation. This,  however,  has  never  been  supposed  to  draw 
after  any  right  of  visitation  or  search.  The  party,  in  such 
cases,  seizes  at  his  peril.  If  he  establishes  the  forfeiture,  he 
is  justified.  If  he  fails,  he  must  make  full  compensation  in 
damages. 

“Upon  the  ocean,  then,  in  time  of  peace,  all  possess  an 
entire  equality.  It  is  the  common  highway  of  all — appropri- 
ated to  the  use  of  all — and  no  one  can  vindicate  to  himself  a 
superior  or  exclusive  prerogative  there.  The  general  maxim 
in  such  cases  is,  sic  utere  tuo , ut  non  alienum  loedas. 

“It  has  been  argued  that  no  ship  has  a right  to  approach 
another  at  sea;  and  that  every  ship  has  a right  to  draw 
round  her  a line  of  jurisdiction,  within  which  no  other  has  a 
right  to  intrude.  In  short,  that  she  may  appropriate  so  much 
of  the  ocean  as  she  may  deem  necessary  for  her  protection, 
and  prevent  any  nearer  approach.  This  doctrine  appears  to 
us  novel,  and  is  not  supported  by  any  authority.  It  goes  to 
establish,  upon  the  ocean,  a territorial  jurisdiction,  like  that 
which  is  claimed  by  all  nations  within  cannon  shot  of  their 
own  shores,  in  virtue  of  their  general  sovereignty.  But  the 
latter  right  is  founded  on  the  principles  of  sovereign  and 
permanent  appropriation,  and  has  never  been  successfully 
asserted  beyond  it.  Every  vessel  undoubtedly  has  a right  to 
the  use  of  so  much  of  the  ocean  as  she  occupies,  and  as  is 
essential  to  her  own  movements.  Beyond  this,  no  exclusive 
right  has  ever  yet  been  recognized,  and  we  see  no  reason  for 
admitting  its  existence.  Merchant  ships  are  in  the  constant 
habit  of  approaching  each  other  on  the  ocean,  either  to  re- 
lieve their  own  distress,  to  procure  information,  or  to  ascer- 
5 


34 


tain  the  character  of  strangers ; and  hitherto  there  has  never 
been  supposed,  in  such  conduct,  any  breach  of  the  customary 
observances  or  of  the  strictest  principle  of  the  law  of  nations. 
In  respect  to  ships-of-war  sailing  as  in  the  present  case,  under 
the  authority  of  their  government,  to  arrest  pirates  and  other 
public  offenders,  there  is  no  reason  why  they  may  not  ap- 
proach any  vessels  descried  at  sea,  for  the  purpose  of  ascer- 
taining their  real  character.  Such  a right  seems  indispensable 
for  the  fair  and  discreet  exercise  of  their  authority,  and  the 
use  of  it  cannot  justly  be  deemed  indicative  of  any  design  to 
injure  or  insult  those  they  approach,  or  to  impede  them  in  their 
lawful  commerce.  On  the  other  hand,  it  is  as  clear  that  no  ship 
is,  under  such  circumstances,  bound  to  lie  by  or  wait  the  ap- 
proach of  any  other  ship.  She  is  at  full  liberty  to  pursue 
her  voyage  in  her  own  way,  and  to  use  all  necessary  precau- 
tions to  avoid  any  suspected  sinister  enterprise  or  hostile 
attack.  She  has  a right  to  consult  her  own  safety,  but  at  the 
same  time  she  must  take  care  not  to  violate  the  rights  of 
others.  She  may  use  any  precautions  dictated  by  the  pru- 
dence or  fears  of  her  officers,  either  as  to  delay  or  the  progress 
or  course  of  her  voyage,  but  she  is  not  at  liberty  to  inflict 
injuries  upon  other  innocent  parties,  simply  because  of  con- 
jectural dangers.  These  principles  seem  to  us  the  natural 
result  of  the  common  duties  and  rights  of  nations  navigating 
the  ocean  in  time  of  peace.” 

In  a subsequent  part  of  the  same  opinion  (p.  49)  we  find 
this  language  : “ It  might  be  a decisive  answer  to  this  argu- 
ment that,  here,  no  right  of  visitation  and  search  was  at- 
tempted to  be  exercised.  Lieutenant  Stockton  did  not  claim 
to  be  a belligerent,  entitled  to  search  neutrals  on  the  ocean. 
His  commission  was  for  other  objects.  He  did  not  approach 
or  subdue  the  Marianna  Flora  in  order  to  compel  her  to 
submit  to  his  search,  but  with  other  motives.  He  took  pos- 
session of  her,  not  because  she  resisted  the  right  of  search, 
but  because  she  attacked  him  in  a hostile  manner,  without 
any  reasonable  cause  or  provocation.” 

“ Upon  the  whole,  we  are  of  opinion  that  the  conduct  of 


35 


Lieutenant  Stockton,  in  approaching  and  ultimately  subduing 
the  Marianna  Flora,  was  entirely  justifiable.  The  first  wrong 
was  done  by  her;  and  his  own  subsequent  acts  were  a just 
defence  and  vindication  of  the  rights  and  honor  of  his  coun- 
try.” 

These  citations  have  been  more  full  and  distinct  than 
under  other  circumstances  would  be  deemed  necessary ; but 
these  brief  remarks  upon  a question  of  absorbing  interest  and 
deep  concern,  not  only  to  the  people  of  the  United  States  and 
their  government,  but  to  all  nations,  may  possibly  be  read 
by  many  who  have  not  the  facilities  of  referring  to  the  origi- 
nal authorities,  and  because  it  is  thought  that  Mr.  Phille- 
more  has  not  made  his  quotations  from  American  authorities 
sufficiently  full,  or  so  arranged  them  as  to  convey  to  his 
readers  an  opportunity  fully  to  appreciate  their  precise  mean- 
ing, or  to  give  to  them  their  full  weight. 

It  is  the  earnest  desire  of  the  great  mass  of  the  American 
people,  sincerely  so  of  the  writer — and  it  is  believed  that  this 
feeling  is  reciprocated  on  the  other  side  of  the  Atlantic — that 
the  present  difficulties  may  not  only  be  amicably  adjusted, 
but  settled  in  a manner  which  will  preclude  for  the  future 
any  recurrence  of  them.  We,  however,  believe  that  such 
controversies  can  alone  be  terminated  to  the  mutual  satisfac- 
tion of  the  parties,  and  in  a way  to  be  productive  of  the  con- 
tinuance of  amicable  relations,  by  no  other  inode  than  one, 
which  will  continue,  cherish,  augment,  and  perpetuate  those 
feelings  of  mutual  respect  which  every  consideration  induces 
the  belief  that  they  can  never  be  diminished  or  shaken,  by 
an  adjustment  which  will  leave  to  either  party  a confidence 
in  the  sincerity  and  untarnished  honor  of  the  other. 

Deeply  impressed  with  this  feeling,  we  have  sought,  and 
it  is  hoped  not  unsuccessfully,  to  show  that  the  American 
government  has  uniformly  acknowledged  every  doctrine  of 
the  public  law  which  has  obtained  the  concurrent  evidence 
of  established  usage  among  civilized  nations,  and  the  au- 
thority of  approved  jurists;  that  the  doctrine  for  which  we  at 
present  contend  has  passed  this  ordeal  and  received  this 


36 


sanction;  that  it  has  been,  in  an  especial  manner,  and  in  the 
most  precise  terms,  approved  by  the  most  exalted  statesmen, 
the  ablest  judges,  and  the  most  learned  jurists  even  of  Eng- 
land herself;  that,  until  within  a few  years,  the  contrary 
doctrine  against  which  we  contend,  and  which  we  ever  have 
and  ever  will  resist,  has  met  with  no  approbation  out  of 
England,  and  much  of  disapprobation  and  opposition  even 
there ; that  while  we  are  unanimous  in  our  resolution  never 
to  concede  it,  the  great  weight  of  British  authority  is  wholly 
antagonistic  to  it. 

It  is  a subject  of  congratulation  that  there  are  at  present, 
and  every  day  increasing,  indications  that  there  will  be  no 
interruption  of  the  harmony  which  has  so  long,  and  happily 
for  both  nations,  subsisted  between  them,  and  these  remarks 
will  be  closed  with  the  prayer,  Esto  jperpetua ! 


